Tribes urge high court to reject jurisdiction claim
Oral arguments in case set for later this month
Since the decisions affirming the reservations, the state’s jurisdiction on the reservations has been limited under federal law to crimes in which both the accused and victims are non-Indians.
Gov. Kevin Stitt is seeking to “veto tribal self-sufficiency” and interfere with criminal jurisdiction that only Congress has the authority to change, the Five Tribes told the U.S. Supreme Court on Monday in a case headed for oral arguments later this month.
Granting the state the authority to prosecute non-Indians who victimize Native Americans on reservations won’t make Native Americans any safer and would give Oklahoma jurisdiction it has never before claimed on trust lands where casinos and tribal headquarters are located, the tribes said in a brief.
“The court should reject the state’s broad and novel proposition,” the tribes told the justices. “The allocation of criminal jurisdiction in Indian country is Congress’s domain, and it has already addressed the matter.
“Further adjustments are properly made through further legislation. To effect a change, the state must convince Congress why its preferred regime for Oklahoma is preferable, rather than asking the court to upend long standing doctrine on a national scale.”
The brief came in a case arising out of the Supreme Court’s decision in 2020 that the Muscogee (Creek) reservation in eastern Oklahoma was never disestablished, giving the federal government and tribes jurisdiction over crimes involving Native Americans on the reservation.
The decision in McGirt v. Oklahoma was extended by the Court of Criminal Appeals last year to the other four members of the Five Tribes — the Cherokee, Chickasaw, Choctaw and Seminole Nations — along with the Quapaw Nation. The reservations comprise about half of the state’s population and more than 40% of the land.
The history that led to the landmark McGirt ruling
Oklahoma has been prosecuting most crimes in state courts since statehood in 1907, when the Five Tribes’ governments were greatly diminished and most of the land promised to the tribes when they were forcibly relocated to Indian Territory in the 1830s was sold to individuals.
Since the decisions affirming the reservations, the state’s jurisdiction on the reservations has been limited under federal law to crimes in which both the accused and victims are non-Indians.
Stitt and Oklahoma Attorney General John O’Connor failed to persuade the U.S. Supreme Court to revisit the McGirt decision. However, the high court did agree to consider a separate argument made by the state: that Oklahoma has concurrent jurisdiction over non-Indian perpetrators who commit crimes against Native Americans on the reservations. Justices are scheduled to hear oral arguments in the case on April 27. A decision is likely this summer.
“Neither the General Crimes Act nor any other federal law preempts a state’s authority to prosecute non-Indians who commit crimes against Indians in Indian country within state borders,” O’Connor stated in a brief filed last month in the case.
“Nor does a state’s exercise of prosecutorial authority over those crimes interfere with tribal or federal interests.”
The Oklahoma Court of Criminal Appeals rejected the argument in numerous cases last year that the state has jurisdiction over any cases involving Native Americans on reservations.
Five tribes file brief jointly
The brief submitted on Monday is unique in that the Five Tribes, once known as the Five Civilized Tribes, have not all officially collaborated on postMcGirt court briefs and legal approaches and are deeply divided on whether to seek new legislation from Congress.
However, the brief, written by Robert Henry, a former Oklahoma attorney general and federal appeals court judge, shows the tribes are united in their argument that Congress would have to give Oklahoma the specific authority it claims to prosecute non-Indians accused of crimes against Native Americans on reservations.
The tribes argued Monday that they and the federal government “are committing unprecedented resources to protect the public and secure criminal justice under the rule of law set forth in McGirt. … The Nations are the hub for this effort for simple reasons. They are the closest to, and most interested in, Indians and Indian communities, and they have demonstrated the capability and commitment to collaborate with other governments.”
The tribes said, “Under its current governor, the state now seeks power that would let it veto tribal self-sufficiency and economic development by allowing it to police non-Indians’ interactions with tribes, even on trust and restricted lands on which it long since conceded jurisdiction over crimes by and against Indians.
“The record of efforts to impose state concurrent criminal jurisdiction on Indian country shows this would not improve safety for Indians.”
Before the McGirt decision, the state did not argue it had concurrent jurisdiction on land that had been taken into trust for tribes by the federal government. Casinos and tribal headquarters are examples of operations that exist on such lands. The state’s position now, the tribes said, would give state and local law enforcement unprecedented authority over tribal activities.
“If the state had the power to police interactions between Indians and non-Indians in Indian country by the threatened exercise of criminal jurisdiction, it could chill non-Indian interactions with tribes by requiring state licensure of participants and criminalizing noncompliance,” the tribes’ brief states.
“For instance, the state might criminalize hunting or fishing on tribal land without a state license and seek to punish non-Indians who rely on tribal licensing or permission. Or it might make it a crime to engage in artistic performances or sporting events at the Nations’ facilities without a state license.”